Brownell v. Town of Greenwich

• Decision Date: 11 June 1889
• Citation: 114 N.Y. 518,22 N.E. 24
• Parties: BROWNELL v. TOWN OF GREENWICH.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 518

22 N.E. 24

BROWNELL

v.TOWN OF GREENWICH.¹

Court of Appeals of New York, Second Division.

June 11, 1889.

Appeal from a judgment of the general term of the supreme court in the Third judicial department, rendered upon a case containing a statement of the facts as agreed upon by the parties pursuant to section 1279 of the Code of Civil Procedure. On December 31, 1884, the plaintiff commenced an action against the defendant, based upon the facts hereinafter stated, but subsequently the parties agreed that said action should be suspended, and the questions in difference submitted to the supreme court as of the date when the action was commenced. They further agreed that, for the purpose of the application of any statute of limitations or claim of laches, the case containing the agreed statement of facts should be deemed to have been duly filed on said 31st of December, 1884. The most material facts upon which the controversy depends, as set forth in the case, are as follows: The defendant is a domestic municipal corporation, and is one of the towns composing the county of Washington, in this state. In 1870, a railroad corporation known as the ‘Greenwich & Johnsonville Railroad Company’ was trying to extend its railroad by a bridge across the river dividing said town of Greenwich from an adjoining town, where its terminus then was, and to erect a depot and other terminal structures on the Greenwich side of the stream. In order to accomplish this, the company, about August, 1870, issued its bonds for $50,000, secured by a second mortgage upon the road and franchises. Subsequently certain proceedings were instituted, pursuant to chapter 907 of the Laws of 1869, to issue the bonds of said town, to aid in the construction of said road. What those proceedings were does not expressly appear, but the case states that on the 21st of March, 1871, the county judge of Washington county ‘duly adjudged, determined, and ordered’ that the allegations contained in a petition of certain tax-payers of said town, duly verified and presented to said judge under and by virtue of said act, ‘are proved and substantiated to my satisfaction, and that the said petitioners do represent a majority of the tax-payers of said municipal corporation of said town of Greenwich, in said county of Washington, as shown by the last preceding tax-list or assessment roll of said town, and do represent a majority of the taxable property of said town upon said list or roll, and that this order be entered and recorded in the office of the clerk of the county of Washington.’ Said judgment contains certain recitals, and states that it was made ‘on reading the order granted on the presentation of said petition, and after taking due proof of the notice issued thereon, and of the due publication of said notice, and of the facts set forth in said petition.’ The judgment was duly entered, and recorded in said clerk's office on the same day that it was rendered. The taxable property of the town as shown by said assessment roll was the sum of $1,404,696. Immediately after said adjudication and order, the county judge ‘duly appointed and commissioned’ three duly-qualified commissioners for said town for the purposes named in the act. Said commissioners accepted the appointment, were duly sworn, and entered upon the discharge of their duty. Thereupon, assuming to act as officers of the town, they prepared, subscribed, and sealed 80 bonds, of $500 each, dated March 25, 1871, payable July 1, 1891, with semi-annual interest, purporting to be the bonds of the town, and reciting that they were issued by authority of said act, with the assent of said town, obtained according to law. Thereafter they placed said bonds in the hands of one Andrews, a bank president, and the treasurer of said railroad company, with directions to sell the same for cash, and to apply the proceeds to the purchase, for said town, of the second mortgage bonds of the railroad company at 80 cents on the dollar. Pursuant to such directions said Andrews sold the bonds of the town, from time to time, as he had the opportunity, to different purchasers for cash, and invested the proceeds in said railroad bonds at 80 per cent. The railroad company used the avails mainly in the construction of said bridge, continuing the road into the town, and in the erection of depots, offices, and other terminal buildings situate in said town. The railroad has been in actual operation ever since, and the defendant had been in the full enjoyment of the advantages it sought. The commissioners received from said Andrews railroad mortgage bonds to the amount of $50,000 par value, and, so far as appears, the town still owns the same. None of the funds received by Andrews upon the sale of the bonds of the town actually went into the hands of the commissioners, and he did not account to them therefor except by delivering to them the railroad bonds for the avails thereof, as aforesaid. On July 1, 1871, the plaintiff bought of said Andrews five of said town bonds at par, and paid therefor the sum of $2,500 in cash, which was invested for the town in railroad bonds, and applied to the use of the railroad company in the manner above stated. Until 1877, said company, in lieu of paying interest upon its bonds held by the town, paid semi-annually to the holders of the town bonds, including the plaintiff, the interest coupons attached thereto; and for the years 1877, 1878, and up to and including January 1, 1879, the defendant paid the interest semi-annually to said holders, with moneys raised by taxation in the usual way. The last payment by the town to the plaintiff was the sum of $175, made during the latter part of January, 1879, as and for the interest due on the 1st of that month upon his five bonds. Since 1880 the town has repudiated said bonds and coupons, and has insisted that it was not liable thereon, mainly upon the ground that the bonds are void on their face, because issued for a term not authorized by law. It is further admitted that the plaintiff purchased his bonds in good faith, and upon the representation of said Andrews that they were good and valid, and in the belief that they were so. A majority of the commissioners intended to properly perform their duties as such, and believed that the bonds were valid and legal. The remaining commissioner is now dead, and his motives are not known, except that he acted with his colleagues in in all matters pertaining to the bonds.

BROWN, J., dissenting.

Esek Cowen, for appellant.

D. M. Westfall, for respondent.

VANN, J., ( after stating the facts as above.)

By the bonding act of 1869 the defendant was transformed from a mere political division of the state, with limited corporate powers, into a municipal corporation, with power to borrow money on an extensive scale, and to invest it in the stock or bonds of such railroad company as a majority of its tax-payers, representing a majority of its taxable property, should designate. Laws 1869, c. 907, p. 2303; Horn v. Town of New Lots, 83 N. Y. 100, 107. Those powers, however, remained dormant, and wholly ineffectual for any purpose, unless they were called into action by the determination of the county judge, based upon such proceedings as the statute required. The first question to be decided, therefore, is whether the adjudication of the county judge was valid and binding upon the town, so as to bring into operation those new and important powers conferred by the statute under consideration. The parties admit that the county judge ‘duly adjudged, determined, and ordered,’ the jurisdictional facts being first recited, that the allegations of the petition are substantiated, and that the petitioners represent a majority of the tax-payers, and a majority of the tax-able property, of the town, according to the last assessment roll. They further admit that the county judge duly appointed and commissioned the commissioners, who accepted, qualified, and acted. The statute authorized the county judge to so ‘adjudge and determine’ only in case it had been in all things complied with. Laws 1869, c. 907, § 2. How, then, could he ‘duly’ adjudge unless every step required had been taken? ‘Duly,’ in legal parlance, means according to law. Gibson v. People, 5 Hun, 542, 543; People v. Walker, 23 Barb. 304;Fryatt v. Lindo, 3 Edw. Ch. 239;Burns v. People, 59 Barb. 531, 543;Webb v. Bidwell, 15 Minn. 479, 484, (Gil. 394.) It does not relate to form merely, but includes form and substance both. The expression ‘duly adjudged,’ as used in the statement for the submission of this controversy, therefore, means adjudged according to law,-that is, according to the statute governing the subject,-and implies the existence of every fact essential to perfect regularity of procedure, and to confer jurisdiction both of the subject-matter and of the parties affected by the judgment, including the defendant. A judical officer has jurisdiction, when he has power to inquire into the facts, to apply the law, and to pronounce the judgment. Any step in the cause of proceeding before him is necessarily the exercise of jurisdiction, and that step cannot be ‘duly’ taken unless jurisdiction exists. The final step-in particular, the making of the judgment-cannot be ‘duly’ taken unless all of the preliminary steps upon which it is based have likewise been duly taken. We also think that the rule of pleading facts prescribed by section 532 of the Code of Civil Procedure ² may with propriety be applied to the statement of facts required by section 1279, and that whatever is a sufficient statement of the facts, according to the former, to impliedly allege jurisdiction, is a sufficient statement of the fact, according to the latter, that jurisdiction existed. Rock well v. Merwin, 45 N. Y. 166. There is no reason for greater particularity in admitting facts for the submission of a coutroversy than in alleging them in a pleading. The same reasoning...